(By Delegate Fleischauer)
[Introduced February 13, 2013; referred to the
Committee on Roads and Transportation then the
Judiciary.]

A BILL to amend and reenact §17C-15-49 of the Code of West
Virginia, 1931, as amended, relating to making the offense of
failure to wear safety belts a primary offense.Be it enacted by the Legislature of West Virginia:
That §17C-15-49 of the Code of West Virginia, 1931, as
amended, be amended and reenacted to read as follows:ARTICLE 15. EQUIPMENT.§17C-15-49. Operation of vehicles with safety belts; exception;
penalty; civil actions; educational program by
division of public safetyWest Virginia State
Police. (a) Effective the first day of September, one thousand nine
hundred ninety-three A person may not operate a passenger vehicle
on a public street or highway of this state unless the person, any passenger in the back seat under eighteen years of age, and any
passenger in the front seat of suchthe passenger vehicle is
restrained by a safety belt meeting applicable federal motor
vehicle safety standards. For the purposes of this section, the
term "passenger vehicle" means a motor vehicle which is designed
for transporting ten passengers or less, including the driver,
except that suchthe term does not include a motorcycle, a trailer,
or any motor vehicle which is not required on the date of the
enactment of this section under a federal motor vehicle safety
standard to be equipped with a belt system. The provisions of this
section shall apply to all passenger vehicles manufactured after
January 1, 1967, and being 1968 models and newer.
(b) The required use of safety belts as provided herein does
not apply to a duly appointed or contracted rural mail carrier of
the United States Postal Service who is actually making mail
deliveries or to a passenger or operator with a physically
disabling condition whose physical disability would prevent
appropriate restraint in suchthe safety belt if the condition is
duly certified by a physician who shall statestates the nature of
the disability as well as the reason suchthe restraint is
inappropriate. The Division of Motor Vehicles shall adopt rules,
in accordance with the provisions of chapter twenty-nine-a of this
code, to establish a method to certify the physical disability and
to require use of an alternative restraint system where feasible or to waive the requirement for the use of any restraint system.
(c) Any person who violates the provisions of this section
shall be fined not more than $25. No court costs or other fees
shallmay be assessed for a violation of this section. Enforcement
of this section shall be accomplished only as a secondary action
when a driver of a passenger vehicle has been detained for probable
cause of violating another section of this code.
(d) A violation of this section is not admissible as evidence
of negligence or contributory negligence or comparative negligence
in any civil action or proceeding for damages, and shallis not be
admissible in mitigation of damages: Provided, That the court may,
upon motion of the defendant, conduct an in camera hearing to
determine whether an injured party's failure to wear a safety belt
was a proximate cause of the injuries complained of. Upon such a
finding by the court, the court may then, in a jury trial, by
special interrogatory to the jury, determine: (1) That the injured
party failed to wear a safety belt; and (2) that the failure to
wear the safety belt constituted a failure to mitigate damages.
The trier of fact may reduce the injured party's recovery for
medical damages by an amount not to exceed five percent thereof.
In the event the plaintiff stipulates to the reduction of five
percent of medical damages, the court shall make the calculations
and the issue of mitigation of damages for failure to wear a safety
belt shallmay not be presented to the jury. In all cases, the actual computation of the dollar amount reduction shall be
determined by the court.
(e) Notwithstanding any other provision of this code to the
contrary, no points may be entered on any driver's record
maintained by the Division of Motor Vehicles as a result of a
violation of this section.
(f) Commencing the first day of July, one thousand nine
hundred ninety-three The Governor's Highway Safety Program, in
cooperation with the division of public safetyWest Virginia State
Police and any other state departments or agencies and with county
and municipal law-enforcement agencies, shall initiate and conduct
an educational program designed to encourage compliance with safety
belt usage laws. This program shall be focused on the
effectiveness of safety belts, the monetary savings and the other
benefits to the public from usage of safety belts and the
requirements and penalties specified in this law.
(g) Nothing contained in this section shall be construed to
abrogate or alterabrogates or alters the provisions of section
forty-six of this article relating to the mandatory use of child
passenger safety devices.

NOTE: The purpose of this bill is to change the offense of
failure to wear safety belts to a primary offense.

Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would be added.